Ledbetter v. Goodyear: Letting the Air out of the Continuing Violations Doctrine?

Marquette Law Review Volume 92 Issue 2 Winter 2008 Article 5 Ledbetter v. Goodyear: Letting the Air out of the Continuing Violations Doctrine? Allison Cimpl-Wiemer Follow this and additional works at: http://scholarship.law.marquette.edu/mulr Part of the Law Commons Repository Citation Allison Cimpl-Wiemer, Ledbetter v. Goodyear: Letting the Air out of the Continuing Violations Doctrine?, 92 Marq. L. Rev. 355 (2008). Available at: http://scholarship.law.marquette.edu/mulr/vol92/iss2/5 This Article is brought to you for free and open access by the Journals at Marquette Law Scholarly Commons. It has been accepted for inclusion in Marquette Law Review by an authorized administrator of Marquette Law Scholarly Commons. For more information, please contact megan.obrien@marquette.edu.

LEDBETTER V. GOODYEAR: LETTING THE AIR OUT OF THE CONTINUING VIOLATIONS DOCTRINE? I. INTRODUCTION This is the story of the United States Supreme Court s failure to properly apply and expand the continuing violations doctrine in Ledbetter v. Goodyear Tire & Rubber, Co. 1 This is also the story of how the continuing violations doctrine is an essential tool for Lilly Ledbetter and her supporters in their struggle to obtain equal pay for equal work for generations of women to come. Ledbetter worked as an area manager at Goodyear s Gadsen, Alabama, plant for nineteen years. 2 A year before her retirement in 1998, she was making fifteen percent less than the lowest paid male area manager and forty percent less than the highest paid male area manager despite her high level of seniority, excellent performance reviews, and the second-highest score on the competency exam. 3 A jury found that Ledbetter was paid less because of her sex and awarded her over three million dollars in damages. 4 However, the Supreme Court, by one vote, reversed the jury s decision, not because Ledbetter failed to prove her case on the merits but because she filed her claim outside of the statute of limitations. 5 The Court held that a claimant must file a wage discrimination claim within 180 days of the management s discriminatory decision to pay a person less because of gender, race, color, national origin, or religion. 6 The Court declined to apply the continuing violations doctrine to wage discrimination claims, which would have circumvented Title VII s statute of limitations and allowed each paycheck to serve as a new unlawful employment practice. 7 Instead, the 1. 127 S. Ct. 2162 (2007). 2. Id. at 2165. 3. Brief for the Petitioner at 3 4, Ledbetter v. Goodyear Tire & Rubber Co., 127 S. Ct. 2162 (2007) (No. 05-1074). 4. Id. at 9. Because of statutory caps, the district court judge reduced the award to approximately $300,000. Id. 5. Ledbetter, 127 S. Ct. at 2177. 6. Id. at 2179. 7. Id. at 2169. Generally, the continuing violations doctrine allows a plaintiff to bring a claim that would otherwise be time-barred for two reasons. See Kyle Graham, The Continuing Violations Doctrine, 43 GONZ. L. REV. 271, 275 (2007). The first reason is if the claim is actually a grouping of several separate but significantly connected claims, some of which happened within the limitations period and some outside of it. Id. The second reason is if the claim consists of several wrongdoings

356 MARQUETTE LAW REVIEW [92:355 Court held that, because the discriminatory intent involved in wage discrimination stems not from the paycheck but from the decision to pay a person less because of her gender, wage discrimination consists of a singular, discrete action. 8 Therefore, the statute of limitations clock begins to run from the date of the discriminatory decision. 9 Thus, the Court s ruling, by focusing on the procedural requirements of Title VII rather than the substantive protections, makes it significantly harder for legitimate victims of wage discrimination to recover under Title VII. Ledbetter s post on the blog The Huffington Post explains why: I just couldn t let Goodyear get away with it so I went to court, and a jury agreed that Goodyear had broken the law. They awarded me $3 million. Then a trial judge reduced it to $300,000 because of a statutory cap on civil rights damages that I don t really understand. But I knew that made discrimination a lot less pricey, and painful, for Goodyear. Then, by one vote, the Supreme Court took that away too, saying that I should have filed my complaint within six months of the original act of discrimination, even though there was no way I could have known about it.... I worked hard at Goodyear, and was good at my job. But with every paycheck, I got less than I deserved and less than the law says I am entitled to. The discrimination continues today, because my pension and Social Security are based on my pay. But because Goodyear kept [the discriminatory pay disparity] a secret, five Justices on the Supreme Court said it didn t matter. It was a step backward, and a terrible decision not just for me but for all the women who may have to fight wage discrimination. 10 In light of the consequences caused by the Ledbetter holding and illustrated by Ledbetter s personal struggle, this Comment argues that the Court should have applied the continuing violations doctrine to wage (that may or may not be actionable on their own) that are all connected by the same discriminatory animus. Id. Wage discrimination claims should fall within the latter characterization because each paycheck is a wrongdoing that is connected by the initial discriminatory decision to pay someone less. But see id. at 321 (stating that wage discrimination claims should fall into the first characterization because each paycheck itself represents a separate, actionable claim). 8. Ledbetter, 127 S. Ct. at 2165. 9. Id. 10. Posting of Lilly Ledbetter and Joan Blades to The Huffington Post, Peaceful Revolution: Equal Pay for Equal Work Time for the Senate to Vote, http://www.huffingtonpost.com/lillyledbetter/empeaceful-revolutionem-e_b_98045.html (Apr. 22, 2008, 04:12 PM EST).

2008] DEFLATING THE CONTINUING VIOLATIONS DOCTRINE? 357 discrimination claims like Ledbetter s for two reasons. First, failing to classify wage discrimination claims as continuing violations is contrary to thirty years of precedent because prior precedent supports classifying wage discrimination claims as continuing violations. Classifying wage discrimination claims as continuing violations is supported by prior precedent because wage discrimination claims have many of the same characteristics as hostile work environment claims, which the Court classified as continuing violations in National Railroad Passenger Corp. v. Morgan. 11 Also, classifying wage discrimination claims as continuing violations is further supported by Bazemore v. Friday, where the Court recognized that each paycheck that pays less to an African-American than to a similarly situated white man is an unlawful employment practice. 12 Second, the Court should have classified wage discrimination claims as continuing violations because classifying wage discrimination claims as singular, discrete actions frustrates the purpose of Title VII and violates the public policies behind Title VII. The holding frustrates the purpose of Title VII because it effectively bars a significant number of claims that substantively qualify as egregious violations of Title VII s prohibition of wage discrimination. However, because the Court has already made its decision, there must be an act of Congress to rectify this mistake. Thus, this Comment also argues in support of the Lilly Ledbetter Fair Pay Act of 2009. 13 The Act classifies wage discrimination claims as continuing violations because it allows victims to bring a claim as long as the employer issues a paycheck representing the discriminatory pay decision within the statute of limitations. 14 Statutorily classifying wage discrimination claims as continuing violations remedies the harm caused by the Ledbetter holding because the Act invalidates the Court s significant narrowing of the continuing violations doctrine and reinforces Title VII s main purpose of providing relief from discrimination on the basis of sex. For a complete understanding of the Ledbetter holding and the proffered criticisms and solutions, this Comment, in Part II, will first discuss the role and function of the Equal Employment Opportunity Commission (EEOC) in wage discrimination claims and the filing procedures for wage discrimination claims required by Title VII. Then, in Part III, it will examine the development of the continuing violations doctrine and trace the applicable Supreme Court precedent. Once the necessary background is established, this 11. 536 U.S. 101, 115, 117 (2002). 12. 478 U.S. 385, 395 (1986). 13. S. 181, 111th Cong. (2009). 14. Id.

358 MARQUETTE LAW REVIEW [92:355 Comment, in Part IV, will analyze the Ledbetter case and demonstrate why the Court s holding is erroneous both on precedential and public policy grounds. Finally, in Part V, it will weigh the merits of the Lilly Ledbetter Fair Pay Act and illustrate how the Act corrects the Court s errors and remedies the harms caused by the Ledbetter holding. II. THE FUNCTION AND STATUTORY PROCEDURAL REQUIREMENTS OF THE EQUAL EMPLOYMENT OPPORTUNITIES COMMISSION To fully comprehend the Ledbetter holding, one must first recognize the role of the EEOC and examine the provision of Title VII that caused the issue in Ledbetter. Created under Title VII of the Civil Rights Act of 1964, the EEOC s primary function is to enforce Title VII s statutory proscriptions on discrimination. 15 Prior to filing a discrimination claim in federal court, the claimant must exhaust administrative proceedings by filing a charge with the EEOC within 180 days of the occurrence of the act. 16 Once a claim is filed, the EEOC has ten days to notify the employer and begin its investigation. 17 After investigating the charge, if the EEOC finds that the claim is valid, then it must try to resolve the claim informally through the process of conciliation. 18 If the parties cannot reach a conciliation agreement, the EEOC has two options. It may either file suit itself in the federal district court, or it may issue a right to sue letter to the claimant, which enables the claimant to file a private action in the federal district court. 19 When the EEOC deems a claim valid, it has 180 days from the date the claim was initially filed with the EEOC to attempt conciliation and then pursue one of the two abovementioned options. 20 However, if the EEOC determines that the claim is invalid or it takes the EEOC longer than 180 days to make a determination, 15. Amanda J. Zaremba, Note, National Railroad Passenger Corp. v. Morgan: The Filing Quandary for Legally Ill-Equipped Employees and Eternally Liable Employers, 72 U. CIN. L. REV. 1129, 1131 32 (2004). Other functions include investigating complaints, operating as a mediator between the two parties, conducting negotiations, attempting conciliation, and generally resolving the conflict to prevent it from going into litigation. Id.; see also Kara M. Farina, Comment, When Does Discrimination Occur? : The Supreme Court s Limitation on an Employee s Ability to Challenge Discriminatory Pay Under Title VII, 38 GOLDEN GATE U. L. REV 249, 253 (2008) ( Congress intended the EEOC to be the leading enforcement agency in workplace discrimination. ). 16. 42 U.S.C. 2000e-5(e)(1) (2000) (requiring employee to file a charge within one hundred and eighty days after the alleged unlawful employment practice occurred ). The 180-day period is extended to 300 days if the claim falls within a state s anti-discrimination law. Id. 17. Id. 2000e-5(b). 18. Id. Conciliation is a process where a neutral party (in this case the EEOC) meets with both sides to explore how the claim might be resolved. BLACK S LAW DICTIONARY 307 (8th ed. 2004). 19. 42 U.S.C. 2000e-5(f)(1) (2000). 20. Id.

2008] DEFLATING THE CONTINUING VIOLATIONS DOCTRINE? 359 then the EEOC must notify the claimant, who then has ninety days to file her own suit in federal district court. 21 According to the statute, then, the federal district court may dismiss a discrimination claim that the EEOC found valid if the claim was not brought within 180 days of the alleged unlawful discriminatory act. 22 At issue in Ledbetter is exactly when a victim of wage discrimination must file her claim with the EEOC. In other words, it is unclear what the alleged unlawful discriminatory act is that causes the 180-day clock to run. In wage discrimination claims, the alleged unlawful discriminatory act could be either: (1) the decision to discriminate based on wage, and the date of that decision is the start of the 180-day period; or (2) the act of paying a person less with each paycheck, and each paycheck starts a new 180-day period. 23 In Ledbetter, the Supreme Court picked the former of the two possibilities. However, to fully understand why the Ledbetter Court picked the date of the decision to discriminate as the starting point for the 180-day period, and why the Ledbetter Court s decision is erroneous, it helps to consider how the Court applied the continuing violations doctrine in other circumstances where it is unclear when the alleged unlawful discriminatory act occurred. III. DEVELOPMENT AND EXPLANATION OF THE CONTINUING VIOLATIONS DOCTRINE Considering the development of the continuing violations doctrine as it applies to the statute of limitations in other discriminatory actions sheds light on the Ledbetter holding. Thus, this section will first look at the definition and purpose of the continuing violations doctrine, and then examine how the Supreme Court has applied and limited the doctrine in Title VII actions over a thirty-year period. A. Definition and Purpose of the Continuing Violations Doctrine Generally, the continuing violations doctrine creates an exception to Title VII s 180-day requirement for filing claims with the EEOC. 24 The theory behind the continuing violations doctrine is that if [the] alleged discrimination is part of a continuing pattern of discrimination, the plaintiff 21. Id. 22. Id. 23. See United Air Lines, Inc. v. Evans, 431 U.S. 553, 561 (1977) (Marshall, J., dissenting). 24. Graham, supra note 7, at 272 73 (stating that the doctrine has the effect of rescuing a plaintiff s claim or claims from the statute of limitations ); Michael Lee Wright, Note, Civil Rights Time Limitations for Civil Rights Claims Continuing Violation Doctrine, 71 TENN. L. REV. 383, 384 (2004).

360 MARQUETTE LAW REVIEW [92:355 should be allowed to bring [a] claim based on the entire pattern of conduct, not just those acts occurring within the filing period. 25 Between the enactment of Title VII in 1964 and the late 1970s, federal courts, most notably circuit courts of appeal, created several different definitions and applications of the continuing violations doctrine. 26 Each court-created definition falls into one of three broad types of continuing violations: serial violations, systemic violations, and past violations that have discriminatory effects in the present. 27 A serial violation is a violation... composed of a number of discriminatory acts emanating from the same discriminatory animus [with] each act constituting a separate wrong actionable under Title VII. 28 Usually, a serial violation occurs when the employer commits many discriminatory acts against one employee. 29 For example, an employee who is denied a promotion several times for the same discriminatory reason suffers from a serial violation. 30 Courts applied the continuing violations doctrine to serial violations because each discriminatory act in the series originated from the same discriminatory intent. 31 However, each circuit had its own test to determine whether the doctrine should apply. For instance, the First Circuit s test mandated that the claimant demonstrate that at least one of the series of discriminatory acts fell within the 180-day period. 32 The Fifth Circuit, on the other hand, had a three-factor test that generally required the claimant to show a series of acts constituting an organized scheme leading to a present violation. 33 Specifically, a claimant had to prove that to some degree the acts (1) all involved the same kind of discrimination; (2) were recurring; and (3) ha[d] the degree of permanence which should trigger an employee s awareness of and duty to assert his or her rights. 34 25. Susan Strebel Sperber & Craig R. Welling, The Continuing Violations Doctrine Post- Morgan, 32 COLO. LAW. 57, 57 (2003). 26. See infra notes 28 50 and accompanying text. 27. Graham, supra note 7, at 304; Wright, supra note 24, at 386. 28. Jensen v. Frank, 912 F.2d 517, 522 (1st Cir. 1990). 29. Graham, supra note 7, at 304. 30. Jensen, 912 F.2d at 522. 31. Wright, supra note 24, at 386. 32. Jensen, 912 F.2d at 522. 33. Berry v. Bd. of Supervisors of L.S.U., 715 F.2d 971, 981 (5th Cir. 1983) (quoting Nelson v. Williams, 25 Fair Empl. Prac. Cas. (BNA) 1214, 1215 (D.D.C. 1981)). 34. Berry, 715 F.2d at 981. Prior to the Supreme Court ruling that serial violations are not a valid exception to the statute of limitations under the continuing violations doctrine in National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002), most circuits adopted some variation of the Fifth Circuit test. See, e.g., Green v. L.A. County Superintendent of Schs., 883 F.2d 1472, 1480 (9th Cir. 1989); Bruno v. W. Elec. Co., 829 F.2d 957, 961 (10th Cir. 1987); Valentino v. U.S. Postal

2008] DEFLATING THE CONTINUING VIOLATIONS DOCTRINE? 361 Alternatively, systemic violations consist of a promotional policy or hiring policy where, by the operation of the policy, minority groups are the last considered. 35 The difference between serial violations and systemic violations is that systemic violations involve a policy that affects a whole group where as serial violations involve a series of actions that affect an individual. 36 Courts apply the continuing violations doctrine to systemic violations because the unlawful action is not a result of any singular act, but rather it consists of an ongoing illegal policy, practice, or system. 37 For a systemic violation, the limitations clock does not begin to tick until the invidious conduct [or policy] ends. 38 Thus, a systemic violation is actionable if the claimant can show that a policy and practice operated at least in part within the limitation period, even if the policy or practice did not affect the plaintiff within 180 days of filing the complaint. 39 The circuits have developed three different ways to measure when the limitations clock begins to run in the event of a systemic violation. 40 First, under the date of injury standard, the statute of limitations begins to run when the plaintiff is notified of the discriminatory policy. 41 Second, the manifestation standard mandates that the statute of limitations period begins to run from the date of enforcement... of the [discriminatory] policy. 42 Third, the ongoing policy standard states that a claimant can bring a claim as long as he remains subject to the [discriminatory] policy. 43 Finally, a past violation with discriminatory effects in the present is a situation where there used to be a discriminatory policy that has since been abandoned by the employer, but the employees are still feeling the effects of the policy. 44 Courts applied the continuing violations doctrine to this type of discrimination because past discrimination with significant effects in the Serv., 674 F.2d 56, 65 (D.C. Cir. 1982). 35. See Rich v. Martin Marietta Corp., 522 F.2d 333, 337 (10th Cir. 1975). 36. See Graham, supra note 7, at 304. 37. See Mack v. Great Atl. & Pac. Tea Co., 871 F.2d 179, 183 (1st Cir. 1989); see also Jensen, 912 F.2d at 523 (noting that systemic violations have roots in a discriminatory policy or practice ); Green, 883 F.2d at 1480 (finding that a plaintiff can satisfy the filing requirements by showing that a policy or practice operated at least in part within the limitation period ). 38. Mack, 871 F.2d at 183. 39. Green, 883 F.2d at 1480; see also Mack, 871 F.2d at 183. 40. Robert J. Reid, Confusion in the Sixth Circuit: The Application of the Continuing Violation Doctrine to Employment Discrimination, 60 U. CIN. L. REV. 1335, 1344 46 (1992). 41. Id. 42. Id. 43. Id. 44. See, e.g., United Air Lines, Inc. v. Evans, 431 U.S. 553, 555 (1977); see also infra Part III.B.

362 MARQUETTE LAW REVIEW [92:355 present rejuvenates the past discrimination in both fact and law regardless of present good faith. 45 Circuit courts originally found that any violation falling into one of these three categories warranted the application of the continuing violations doctrine, and therefore, they allowed the claims, despite the fact that many of the alleged actions fell outside the statute of limitations. 46 Such liberal application of the doctrine stemmed from the circuit courts need to ameliorate the harsh effects of Title VII s original ninety-day filing period. 47 Many circuits held that valid substantive claims were unfairly barred and that the ninety-day filing period often hindered the substantive goals of Title VII. 48 Thus, in order to advance Title VII s purpose, courts broadly applied the continuing violations doctrine. 49 However, the doctrine s application eventually became inconsistent and confusing because of the many different tests and applications of the doctrine, so the Supreme Court began to define when to apply the doctrine. 50 B. Initial Supreme Court Limitations on the Continuing Violations Doctrine United Air Lines, Inc. v. Evans 51 and Delaware State College v. Ricks 52 illustrate the Court s first attempts at limiting and defining the continuing violations doctrine. In Evans, the Court determined that past violations with present effects were not a valid continuing violation under the doctrine. 53 Evans involved a flight attendant who was forced to resign in 1968 because, at the time, United had a policy that required all flight attendants to remain unmarried. 54 A few months later, United eliminated its policy because of the controversy surrounding it and entered into a new collective bargaining agreement where affected flight attendants could seek reinstatement as long as they filed grievances with their union. 55 Because the plaintiff did not file a grievance 45. Marquez v. Omaha Dist. Sales Office, Ford Div. of Ford Motor Co., 440 F.2d 1157, 1160 (8th Cir. 1971). 46. Wright, supra note 24, at 386. 47. Id. at 385. The 1972 Amendments to Title VII lengthened the filing period to 180 days. Equal Opportunities Act of 1972, Pub. L. No. 92-261, 4(e), 86 Stat. 103 (amending 42 U.S.C. 2000e-5); see Evans, 431 U.S. at 554 n.3. 48. Wright, supra note 24, at 385. 49. See id. at 386. 50. Elliot v. Sperry Rand Corp., 79 F.R.D. 580, 585 (D. Minn. 1978). 51. 431 U.S. 553 (1977). 52. 449 U.S. 250 (1980). 53. Evans, 431 U.S. at 558. 54. Id. at 554. 55. Id. at 555; David R. Brugel & John R. Ruhl, Comment, Evans v. United Air Lines, Inc., 52 NOTRE DAME L. REV. 364, 364 (1977). Many United flight attendants who did not file grievances

2008] DEFLATING THE CONTINUING VIOLATIONS DOCTRINE? 363 she was rehired as a new employee and lost all her seniority, thus affecting her eligibility for benefits. 56 She then filed a claim under Title VII alleging that United s refusal to grant her pre-resignation seniority was an unlawful discriminatory action. 57 The District Court of the Northern District of Illinois dismissed Evans s complaint because she did not file it within ninety days after her forced resignation; therefore, the action was time-barred. 58 The Seventh Circuit initially affirmed the district court ruling, but after the Supreme Court handed down its ruling in Franks v. Bowman Transportation Co., 59 the Seventh Circuit reheard the case and unanimously reversed. 60 The plaintiff then appealed to the Supreme Court, and the Court held that the plaintiff s claim was time-barred. 61 The Court reasoned that, because the plaintiff waited four years to bring a claim instead of seeking a remedy immediately when she was forced to resign, and because the current system was facially neutral and legal under Title VII, it would not further the goals of Title VII to allow her to bring a claim. 62 Consequently, the Court suggested that a past violation that has lasting effects in the present is not a continuing violation and therefore not an exception to the statute of limitations. 63 Three years later, in Ricks, the Court explicitly affirmed its suggestion in Evans by holding that a past violation with effects in the present is not an exception under the continuing violations doctrine. 64 The plaintiff was a Liberian professor at Delaware State who was denied a tenured position. However, he was offered a one-year employment contract to give him time to look for new employment. 65 It was understood by both parties that once the employment contract ended, the plaintiff would no longer be employed at with the union brought suit to be reinstated immediately after United changed its policy. Id.; see also Sprogis v. United Air Lines, Inc., 444 F.2d 1194 (7th Cir. 1971). Plaintiff in the Evans case was not part of the Sprogis case. Evans, 431 U.S. at 554. 56. Evans, 431 U.S. at 555. 57. Id. at 556. 58. Evans v. United Air Lines, Inc., No. 74 C 2530, 1975 WL 11902, at *1 (N.D. Ill. Apr. 9, 1975). Because the case was filed prior to the 1972 amendments, Equal Opportunities Act of 1972, Pub. L. No. 92-261, 4(e), 86 Stat. 103 (amending 42 U.S.C. 2000e-5), the applicable statute of limitations period was ninety days. Id. 59. 424 U.S. 747 (1976). The Court in Franks ruled that a facially neutral seniority system violates Title VII when the plaintiff can demonstrate that the seniority system deprives him of benefits because of past discriminatory actions. Id. at 764 66. 60. Evans v. United Air Lines, Inc., 534 F.2d 1247 (7th Cir. 1976). 61. Evans, 431 U.S. at 558. 62. Id. at 558 59. 63. Id. 64. Del. State Coll. v. Ricks, 449 U.S. 250, 258 (1980). 65. Id. at 252 54.

364 MARQUETTE LAW REVIEW [92:355 Delaware State. 66 When the employment contract did end, the plaintiff filed a complaint alleging he was denied tenure and subsequently dismissed because of his national origin. 67 The plaintiff argued that his claim was not timebarred because, even though the decision to deny him tenure was made outside of the statute of limitations, the adverse effect did not occur until his employment contract terminated. 68 The district court dismissed the complaint because the only unlawful employment action alleged, the denial of tenure, fell outside the statute of limitations. 69 However, the Third Circuit reversed, reasoning that the statute of limitations did not begin to run until Ricks s employment ended. 70 Agreeing with the district court, the Supreme Court held that the statute of limitations began to run when the plaintiff s tenure was denied. 71 The Court reasoned that [m]ere continuity of employment, without more, is insufficient to prolong the life of a cause of action for employment discrimination. 72 In its holding, the Court stated explicitly that the focus should be on when the actual violation occurred and not on when the effects of the violation became most painful. 73 Together, Ricks and Evans limited the continuing violations doctrine by decreeing that one of the three definitions of a continuing violation, past discrimination that has present effects, is not an acceptable application of the continuing violations doctrine. However, it is important to note that in both cases the Court s reason for limiting the doctrine was because the unlawful discriminatory acts at issue were single, easily identifiable discriminatory acts that the plaintiffs knew about long before they filed claims with the EEOC. Thus, the Court had no issues with barring the meritorious claims. Also, these decisions were relatively silent on the application of the doctrine to serial and systemic violations. So, circuit courts continued to apply the doctrine to these claims for another twenty years until the Court once again considered the application of the continuing violations doctrine to Title VII claims and severely limited the doctrine s utility. 66. Id. 67. Id. 68. Id. at 257. 69. Id. at 254 55. 70. Id. 71. Id. at 256 57. 72. Id. 73. Id. at 258 (quoting Abramson v. Univ. of Haw., 594 F.2d 202, 209 (9th Cir. 1979)).

2008] DEFLATING THE CONTINUING VIOLATIONS DOCTRINE? 365 C. Death of the Continuing Violations Doctrine in Title VII Cases? Morgan and its Limitations In 2002, the Supreme Court once again considered the continuing violations doctrine in National Railroad Passenger Corp. v. Morgan. 74 While the Court did not completely kill the doctrine, it narrowed it severely by holding that the doctrine does not apply to serial violations. The plaintiff in Morgan alleged that he was consistently harassed and disciplined more harshly than other employees on account of his race. 75 While a few of the discriminatory acts he complained of took place within the 300-day limitation period, 76 the majority occurred outside of the period. 77 However, the plaintiff argued that even though the bulk of the acts were outside the filing period, all of them resulted from the same discriminatory impulse. 78 Because all the acts derived from the same impulse, he argued that they should be recognized as a serial violation of Title VII and that the Court should apply the continuing violations doctrine. 79 The plaintiff also argued that the repeated, daily use of racial slurs and epithets by fellow employees, managers, and supervisors created a hostile work environment and that the continuing violations doctrine should apply to the claim because a hostile work environment, by its nature, is a continuing violation. 80 The district court held that the continuing violations doctrine did not apply to either claim because the allegations were discrete and singular, and thus, they were time-barred. 81 However, the Ninth Circuit reversed, holding that the actions falling outside the limitations period were sufficiently related to those that fell inside the limitations period; therefore, the continuing 74. 536 U.S. 101, 108 (2002). 75. Id. at 105. 76. Because he filed with a state agency first, the applicable limitations period was 300 days. Id.; see 42 U.S.C. 2000e-5(e)(1) (2000). 77. The plaintiff complained that because of his race, he was given the label electrician s helper and paid less than an electrician even though he did the same work. Bernice Yeung, A Black and White Issue, SAN FRANCISCO WEEKLY, May 1, 2002, available at http://sfweekly.com/content/printversion/313233. He also alleged that he was constantly subjected to racial slurs; disciplined for things white co-workers were not disciplined for; denied access to training programs because his supervisors told him he lacked the mental capacity; and fired for the pretextual reason of threatening a supervisor when he was actually fired for complaining too many times about such racist treatment. Id. However, the plaintiff did not file his complaint with the EEOC until he was fired. Id. 78. Morgan, 536 U.S. at 106. 79. Id. 80. Id.; see Zaremba, supra note 15, at 1138. 81. Morgan, 536 U.S. at 106.

366 MARQUETTE LAW REVIEW [92:355 violations doctrine precluded them from being time-barred because they were classified as serial violations. 82 The Supreme Court affirmed in part and reversed in part by distinguishing between the serial violations and the hostile work environment claim. 83 It held that the continuing violations doctrine did not apply to serial violations but that it did apply to the hostile work environment claim. 84 Because the alleged serial violations consisted of acts such as failure to promote, denial of training, or denial of transfer, the Court characterized the claims as discrete and easily identifiable. 85 Because the acts were discrete and easily identifiable, each [discriminatory] adverse employment decision constitutes a separate actionable unlawful employment practice. 86 Even though each discrete action had the same discriminatory impulse, the Court held that the continuing violations doctrine did not apply because the actions involved were actions that were separately actionable and easy to identify as discriminatory, and such easy identification warranted a strict application of the 180/300-day limitation. 87 However, the Court held that the continuing violations doctrine did apply to the hostile work environment claim because the nature of the claim necessitated the exception. 88 The Court differentiated between serial violations and a hostile work environment, noting that hostile work environments are not easily identifiable or separately actionable. 89 Also, the Court acknowledged that the actionable unlawful employment practice involves repeated conduct.... [and] [t]he unlawful employment practice therefore cannot be said to occur on any particular day but usually happens over several days, months, or years. 90 Additionally, the Court noted that hostile work environment claims are difficult to prove in a short period of time because the plaintiff, to be successful, must be aware of the 82. Id. at 106 07. 83. Id. at 105. 84. Id. 85. Id. at 114; see Farina, supra note 15, at 266. 86. Morgan, 536 U.S. at 114. 87. Id.; see Joseph M. Aldridge, Note, Pay-Setting Decisions as Discrete Acts: The Court Sharpens Its Focus on Intent in Title VII Actions in Ledbetter v. Goodyear Tire & Rubber Co., 127 S. Ct. 2162 (2007), 86 NEB. L. REV. 955, 966 (2008). 88. Morgan, 536 U.S. at 115. 89. Id. at 115 17; see Aldridge, supra note 87, at 966 ( A divided court held that because such claims allege a series of incidents, some of which may be difficult to identify and are not independently actionable, such claims collectively formed a single allegation of an offensive or intimidating atmosphere. ). 90. Morgan, 536 U.S. at 115; see Zaremba, supra note 15, at 1144 (noting that the unemployment practice cannot have occurred on one day, but rather requires days and even years of accumulated conduct to constitute a valid claim. ).

2008] DEFLATING THE CONTINUING VIOLATIONS DOCTRINE? 367 discrimination and show that the discrimination in the work place is hostile and abusive enough to offend a reasonable person. 91 As a result, while the Morgan Court severely limited the range of the continuing violations doctrine because it eliminated the traditional category of serial violations, it did not do away with the doctrine entirely, like many critics claim. 92 As shown above, the Court did endorse the application of the doctrine to hostile work environment claims, and it still has not commented on the applicability of the doctrine to systemic violations. This suggests that the Court could expand the doctrine by applying it to certain discriminatory acts for policy reasons. In fact, precedent exists suggesting that the Court should apply the doctrine to wage discrimination claims. D. Possible Expansion of the Continuing Violations Doctrine to Wage Discrimination Claims: Bazemore v. Friday Bazemore v. Friday 93 provides precedent allowing the Court to apply the continuing violations doctrine to wage discrimination claims even though wage discrimination claims are technically serial violations. The Bazemore Court s classification of pay disparities as current violations of Title VII and the Court s use of the paycheck to support this classification demonstrate that the Court considered the paycheck as a manifestation of the current violation. Bazemore also implies that wage discrimination claims are unique and their tendency to perpetuate discrimination justifies allowing claims where that are otherwise time-barred. Bazemore does not involve a statute of limitations claim or an individual wage discrimination claim but instead deals with a discriminatory pay scale that was enacted prior to the passage of the Civil Rights Act of 1964. 94 The pay scale in place prior to August 1, 1965, divided whites and African- 91. Morgan, 536 U.S. at 115 (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)); see Graham, supra note 7, at 303 (discussing the subjective and objective components of a hostile work environment claim and how those components show that hostile work environment claims typically are comprised of many slights instead of a single egregious event,... [making] it especially difficult for potential plaintiffs to determine when their claims have accrued. ). 92. See Sperber & Welling, supra note 25, at 60 ( From a purely technical standpoint, the Court in Morgan did away with the continuing violations doctrine. ); Zaremba, supra note 15, at 1134 (explaining how the Supreme Court rejected the application of the doctrine to Title VII claims in Morgan). But see Aldridge, supra note 87, at 978 ( Morgan thus constrained the continuing violation theory to hostile work environment claims.... ). 93. 478 U.S. 385 (1986). This decision was a per curiam decision, but much of the analysis relevant to this Comment is contained in Justice Brennan s concurrence. Id. at 386 87 ( We hold, for the reasons stated in the concurring opinion of Justice Brennan, that the Court of Appeals erred in holding that under [Title VII]... the Extension Service had no duty to eradicate salary disparities between white and black workers that had their origin prior to the date Title VII was made applicable to public employers.... ). 94. Id. at 390 91 (Brennan, J., concurring).

368 MARQUETTE LAW REVIEW [92:355 Americans into two branches where the African-Americans were given lower salaries than the whites. 95 After August 1, 1965, the employer integrated the two branches but did not correct the pay scale. 96 A class of African-American employees filed a wage discrimination claim asking the court to make the employer eliminate the pay disparities between whites and African- Americans. 97 The court of appeals held that the employer did not have a duty to eliminate the disparities caused by a policy that was not illegal at the time when it was in place. 98 The Supreme Court held that the employer did have a duty because a present violation of Title VII existed despite the fact that the policy no longer was in place and all that remained was the effects of the policy. 99 The employer argued that the Court s holding went against United Air Lines, Inc. v. Evans 100 because there the Court held that the past discrimination with present effects was time-barred. 101 However, the Bazemore Court distinguished Evans by characterizing the pay disparities themselves as current violations of Title VII. 102 The Court found that the pay disparity was the present violation because it reasoned that ongoing pay disparities perpetuate discrimination. 103 The Court articulated that just because the employer discriminated with respect to salaries prior to the time it was covered by Title VII does not excuse perpetuating that discrimination after the [employer] became covered by Title VII. To hold otherwise would have the effect of exempting from liability those employers who were historically the greatest offenders of the rights of blacks. 104 Bazemore, then, generally implies that it is against public policy not to correct pay disparities because failing to correct them exempts employers from liability and perpetuates discrimination. It is also important to note that the Bazemore Court saw the paycheck as a manifestation of the pay disparity: Each week s paycheck that delivers less 95. Id. 96. Id. 97. Id. at 386 87. 98. Id. 99. Id. at 386 87, 396. 100. 431 U.S. 553, 558 (1977). 101. Bazemore, 478 U.S. at 396. 102. Id. at 396 n.6; see Farina, supra note 15, at 265. 103. Bazemore, 478 U.S. at 395 96. 104. Id.

2008] DEFLATING THE CONTINUING VIOLATIONS DOCTRINE? 369 to a black than to a similarly situated white is a wrong actionable under Title VII.... 105 This demonstrates that the Court regarded the paycheck as representative of the pay disparity, and thus the current violation, because it characterized the violation in terms of a paycheck. Employing the paycheck as a manifestation of the current violation allowed the Bazemore Court to put aside the procedural barrier to the claim (the fact that the action causing the pay disparity fell outside the enactment of the Civil Rights Act) in order to further the policy goals of Title VII because it gave the Court something current to base the claim on. Indeed, the past thirty years of precedent suggests that the Court has a general policy of circumventing the statute of limitations or other procedural barriers to further the substantive goals of Title VII. In fact, courts used the continuing violations doctrine more often and broadly applied the doctrine when the limitations period was significantly shorter and thus more likely to bar meritorious suits. However, such broad usage caused confusion and inconsistency in the application of the doctrine, which is why the Court began limiting its utility in Evans and Ricks. And even though the Court in Morgan severely limited the doctrine s utility, Morgan still demonstrates the Court s willingness to use the doctrine when it believes there is good public policy to allow the claim to proceed. 106 The issue for wage discrimination claims, then, is whether the public policy behind preventing wage discrimination is enough for the Court to apply the doctrine. In light of Morgan and Bazemore, it seems like the doctrine should apply to wage discrimination claims. However, the Ledbetter Court disagreed and held that the doctrine does not apply. 107 IV. THE COURT S FAILURE TO APPLY THE CONTINUING VIOLATIONS DOCTRINE TO WAGE DISCRIMINATION CLAIMS: LEDBETTER V. GOODYEAR In order to effectively analyze the Ledbetter holding, it is necessary to consider the facts, precedential history, and reasoning of the case. Thus, this Comment discusses the case before arguing that the holding goes against prior precedent and public policy. A. Discussion of Ledbetter The United States Supreme Court resolved the issue of whether the continuing violations doctrine applies to wage discrimination suits in Ledbetter v. Goodyear Tire & Rubber Co. 108 The Court held that a wage 105. Id. 106. See, e.g., supra Part III.C (analyzing Morgan s hostile work environment claim). 107. Ledbetter v. Goodyear Tire & Rubber Co., 127 S. Ct. 2162, 2165 (2007). 108. Id.

370 MARQUETTE LAW REVIEW [92:355 discrimination claim brought under Title VII is a discrete, easy-to-identify act, and therefore is not subject to the continuing violations exception to Title VII s statute of limitations. 109 In Ledbetter, the plaintiff, Lilly Ledbetter, worked at Goodyear s Gadsen, Alabama, plant from 1979 to her early retirement in 1998 primarily as an area manager. 110 During her tenure at Goodyear, salaries of area managers would increase only if the business center manager believed they deserved a yearly raise. 111 Business center managers made their decisions based on yearly performance rankings, reports from performance auditors, and their own subjective impressions. 112 As a result of this system, Ledbetter often did not receive a yearly raise, or if she did, it was significantly smaller than her male counterparts. 113 By 1997, she was making fifteen percent less than the lowestpaid male area manager (who had significantly less seniority and experience) and forty percent less than male area managers with equal or less seniority. 114 When she retired in 1998, she filed a claim with the EEOC. 115 Goodyear argued that Ledbetter s claim was time-barred because none of the alleged discriminatory acts took place after September 26, 1997, exactly 180 days from when Ledbetter filed her complaint with the EEOC. 116 Substantively, Goodyear maintained that the merit system was neutral and that Ledbetter was paid less because that is what her performance dictated. 117 However, Ledbetter offered several pieces of evidence demonstrating that Goodyear s proffered reasons were pretextual. First, Ledbetter presented evidence that her performance rankings were inaccurate and sometimes falsified for various reasons. 118 She showed that other area managers and various supervisors believed her work was of high quality and that she won a Top Performance Award in 1996. 119 She also demonstrated that her onetime direct supervisor and performance auditor threatened to give her (and 109. Id. 110. Id.; see also Brief for the Petitioner, supra note 3, at 3 4. When Ledbetter was promoted to area manager, she scored the second-highest on the competency exam out of forty-five applicants for the job. Id. 111. Brief for the Petitioner, supra note 3, at 5. 112. Id. 113. Id. 114. Id. at 4. In 1997, Ledbetter was making $3727 per month while the lowest-paid male area manager was making $4286 per month, and the highest-paid male area manager was working $5236 per month. Ledbetter, 127 S. Ct. at 2178 (Ginsberg, J., dissenting). Thus, Ledbetter was making $6000 less per year than the lowest-paid male and $18,000 less a year than the highest-paid male. 115. Ledbetter, 127 S. Ct. at 2165. 116. Id. at 2166. 117. Brief for the Petitioner, supra note 3, at 5. 118. Id. 119. Id.

2008] DEFLATING THE CONTINUING VIOLATIONS DOCTRINE? 371 eventually did give her) poor performance evaluations if she continued rejecting his sexual advances. 120 Second, Ledbetter offered evidence of widespread gender discrimination at the plant. 121 Third, Ledbetter illustrated that her work environment was hostile toward women. 122 The district court rejected Goodyear s statute of limitations claim and let the substantive issue of the Title VII pay discrimination claim go to trial. 123 The jury found that it was more likely than not that Ledbetter was paid less because of her sex and awarded her $223,776 in back pay, $4662 for mental anguish, and $3,285,979 in punitive damages. 124 Goodyear appealed on the statute of limitations claim, and the Court of Appeals for the Eleventh Circuit reversed the district court, reasoning that the claim was time-barred by the 180-day filing limit. 125 The appellate court stated that even though there were two pay decisions made within the limitations period, 126 the evidence from those two pay decisions alone was insufficient to uphold the jury s verdict. 127 On appeal to the United States Supreme Court, Ledbetter argued that her claim was timely. Relying heavily on Bazemore, Ledbetter asserted that each paycheck issued where she was paid less than her male counterparts was a separate act of discrimination and that the series of violations comprised a 120. Id. at 5 6. When Ledbetter confronted this man about her poor evaluations, he told her that it was because she was just a little female and these big old guys... [would] beat up on me and push me around and cuss me. Id. After this confrontation, Ledbetter claimed that her evaluations got worse. Id. Goodyear was supposed to retain these evaluations, but the records were not preserved. Id. 121. Id. at 7. There were only two other female area managers during Ledbetter s employment, and both made less than their male counterparts. Id. The first area manager testified at trial that her male supervisors told her she would be given low ratings because they did not think women were capable of handling the job. Id. The second area manager transferred from a secretarial position to the area manager position; however, she retained her secretarial pay and was making less than the men she supervised. Id. 122. Id. at 8. She was constantly told that the plant did not need women because they were troublemakers. Id. 123. Ledbetter v. Goodyear Tire & Rubber Co., 127 S. Ct. 2162, 2165 (2007). The district court did grant Goodyear s motion for summary judgment on several other claims, including an Equal Pay Act claim. Id. 124. Brief for the Petitioner, supra note 3, at 9. By law, the district court had to reduce the back pay award to $60,000 because a plaintiff cannot receive more than two years back pay. Id. The court, to comply with 42 U.S.C. 1981a(b)(3)(D), also reduced the punitive damage award to $295,338. Id. 125. Ledbetter, 127 S. Ct. at 2166. 126. There was a decision made to deny Ledbetter a raise in the fall of 1997 and in the beginning of 1998. Brief for the Petitioner, supra note 3, at 10. 127. Ledbetter, 127 S. Ct. at 2166. The Eleventh Circuit did recognize that a Title VII claim challenging an employee s pay was not time-barred so long as the plaintiff received within the limitations period at least one paycheck implementing the pay rate the employee challenged as unlawful. Ledbetter v. Goodyear Tire and Rubber Co., 421 F.3d 1169, 1181 (11th Cir. 2005).

372 MARQUETTE LAW REVIEW [92:355 continuing violation. 128 She argued that the Bazemore precedent created a paycheck accrual rule under which each paycheck, even if not accompanied by discriminatory intent, triggers a new EEOC charging period during which the complainant may properly challenge any prior discriminatory conduct that impacted the amount of that paycheck, no matter how long ago the discrimination occurred. 129 Essentially, Ledbetter argued that in light of Bazemore s use of the paycheck as a manifestation of the current violation caused by the pay disparity, the Court should apply the continuing violations doctrine. 130 The Court, however, held that Ledbetter s wage discrimination claim was not a continuing violation but a discrete act that was time-barred by the 180- day limitation. 131 For such claims, the statute of limitations begins to run when the discriminatory pay decision is made because that is the action which contains the necessary discriminatory intent. 132 The Court distinguished Bazemore, explaining that a paycheck represents a current violation of Title VII only when the pay scale is facially discriminatory, like in Bazemore, because the facially discriminatory nature of the scale causes the employer to engage in intentional discrimination each time a paycheck is issued. 133 However, the Court reasoned that the pay structure in Ledbetter was facially neutral and the paychecks stemming from the pay structure, by extension, were also neutral, so there was no discrimination associated with each paycheck. 134 In further support of its holding, the Court used prior precedent and policy justifications for the strict adherence to the statute of limitations. The Court contended that prior precedent supported its ruling because Ledbetter argued simply that Goodyear s conduct during the charging period gave present effect to discriminatory conduct outside of that period, but Evans, Ricks, and Morgan held that such conduct does not fall under the continuing violation exception to the statute of limitations. 135 Also, the Court reasoned that a short statute of limitations is good public policy because it requires complainants to file promptly. 136 Prompt filing is 128. Ledbetter, 127 S. Ct. at 2173. 129. Id. at 2172. 130. See supra Part III.D. 131. Ledbetter, 127 S. Ct. at 2165. 132. Id. 133. Id. at 2173; see Farina, supra note 15, at 265; Tristian K. Green, Insular Individualism: Employment Discrimination Law After Ledbetter v. Goodyear, 43 HARV. C.R.-C.L. L. REV. 353, 363 (2008). 134. Ledbetter, 127 S. Ct. at 2173; see Green, supra note 133, at 363. 135. Ledbetter, 127 S. Ct. at 2169. 136. Id. at 2170.